[Federal Register Volume 79, Number 214 (Wednesday, November 5, 2014)]
[Notices]
[Pages 65660-65663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26214]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
[OMHA-1401-NC]
Medicare Program; Administrative Law Judge Hearing Program for
Medicare Claim Appeals
AGENCY: Office of Medicare Hearings and Appeals (OMHA), HHS.
ACTION: Request for information.
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SUMMARY: This request for information solicits suggestions for
addressing the substantial growth in the number of requests for hearing
being filed with the
[[Page 65661]]
Office of Medicare Hearings and Appeals, and backlog of pending cases.
DATES: The information solicited in this notice must be received at the
address provided below, no later than 5:00 p.m., eastern standard time
(e.s.t.) December 5, 2014.
ADDRESSES: In commenting, refer to ``OMHA-1401-NC'' at the top of your
comments. Because of staff and resource limitations, we cannot accept
comments by facsimile (FAX) transmission. We will not accept comments
submitted after the comment period.
You may submit comments in one of two ways (to ensure that we do
not receive duplicate copies, please choose only one of the ways
listed):
1. Electronically. You may submit electronic comments to
www.regulations.gov. For new users, you can find instructions on how to
submit comments by selecting ``Are you new to this site?'' at
www.regulations.gov, then selecting ``How do I submit a comment?'' For
those familiar with www.regulations.gov, you can search ``OMHA-1401-
NC'' and select ``Comment Now!''
If you are submitting comments electronically, we strongly
encourage you to submit any comments or attachments in Microsoft Word
format. If you must submit a comment in Portable Document Format (PDF),
we strongly encourage you to convert the PDF to print-to-PDF format or
to use some other commonly used searchable text format. Please do not
submit the PDF in a scanned or read-only format. Using a print-to-PDF
format allows us to electronically search and copy certain portions of
your submissions.
2. U.S. Mail or commercial delivery. You may send written comments
to the following address only: Office of Medicare Hearings and Appeals,
Department of Health and Human Services, Attention: OMHA-1401-NC, 1700
N. Moore St., Suite 1800, Arlington, VA 22209.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
Viewing comments: Comments received from members of the public
(including comments submitted by mail or commercial delivery) will be
made available for public viewing in their entirety on the Federal
eRulemaking portal at www.regulations.gov. Information on using
www.regulations.gov, including instructions for accessing agency
documents, submitting comments, and viewing the docket, is available on
the site under ``Are you new to the site?''
Privacy Note: Because comments will be made available for public
viewing in their entirety on the Federal eRulemaking portal,
commenters should exercise caution and only include in their
comments information that they wish to make publicly available.
FOR FURTHER INFORMATION CONTACT: Jason Green, by telephone at 1-703-
235-0124, or by email at [email protected] (comments will not be
accepted at this email address). If you use a telecommunications device
for the deaf (TDD) or a text telephone (TTY), call the Federal Relay
Service (FRS), toll free, at 1-800-877- 8339.
SUPPLEMENTARY INFORMATION:
I. Background
The Office of Medicare Hearings and Appeals (OMHA), a staff
division within the Office of the Secretary of the U.S. Department of
Health and Human Services (HHS), administers the nationwide
Administrative Law Judge hearing program for Medicare claim,
organization and coverage determination, and entitlement appeals under
sections 1869, 1155, 1876(c)(5)(B), 1852(g)(5), and 1860D-4(h) of the
Social Security Act. OMHA ensures that Medicare beneficiaries and the
providers and suppliers that furnish items or services to Medicare
beneficiaries, as well as Medicare Advantage Organizations (MAOs) and
Medicaid State Agencies, have a fair and impartial forum to address
disagreements with Medicare coverage and payment determinations made by
Medicare contractors, MAOs, or Part D Plan Sponsors (PDPSs), and
determinations related to Medicare eligibility and entitlement, and
income-related premium surcharges made by the Social Security
Administration (SSA).
The Medicare claim, and organization and coverage determination
appeals process consists of four levels of administrative review within
HHS, and a fifth level of review with the Federal courts after
administrative remedies within HHS have been exhausted. The first two
levels of review are administered by the Centers for Medicare &
Medicaid Services (CMS) and conducted by Medicare contractors for claim
appeals, by MAOs and an independent review entity for Part C
organization determination appeals, or by PDPSs and an independent
review entity for Part D coverage determination appeals. The third
level of review is administered by OMHA and conducted by Administrative
Law Judges. The fourth level of review is administered by the HHS
Departmental Appeals Board (DAB) and conducted by the Medicare Appeals
Council. In addition, OMHA and the DAB administer the second and third
levels of appeal, respectively, for Medicare eligibility, entitlement
and premium surcharge reconsiderations made by SSA; a fourth level of
review with the Federal courts is available after administrative
remedies within HHS have been exhausted.
The Medicare, Medicaid, and SCHIP Benefits Improvement and
Protection Act of 2000 (Pub. L. 106-554), which added section
1869(d)(1)(A) of the Social Security Act, provides for an
Administrative Law Judge to conduct and conclude a hearing and render a
decision on such hearing within 90 days of the date a request for
hearing has been timely filed. Section 1869(d)(3) of the Social
Security Act states that, if an ALJ does not render a decision by the
end of the specified timeframe, the appellant may request review by the
Departmental Appeals Board. Likewise, if the Departmental Appeals Board
does not render a decision by the end of the specified timeframe, the
appellant may seek judicial review. OMHA was established in July 2005
pursuant to section 931 of the Medicare Prescription Drug, Improvement,
and Modernization Act of 2003 (Pub. L. 108-173), which required the
transfer of responsibility for the Administrative Law Judge hearing
level of the Medicare claim and entitlement appeals process from SSA to
HHS. OMHA was expected to improve service to appellants and reduce the
average 368-day waiting time for a hearing decision that appellants
experienced with SSA.
OMHA serves a broad sector of the public, including Medicare
providers, suppliers, and MAOs, and Medicare beneficiaries, who are
often elderly or disabled and among the nation's most vulnerable
populations. OMHA currently administers its program in five field
offices, including those located in Miami, Florida; Cleveland, Ohio;
Irvine, California; Arlington, Virginia; and the recently established
field office in Kansas City, Missouri. OMHA uses video-teleconferencing
(VTC), telephone conferencing, and in-person formats to provide
appellants with hearings.
At the time OMHA was established, it was envisioned that OMHA would
receive the claim and entitlement appeals workload from the Medicare
Part A and Part B programs, and organization determination appeals from
the Medicare Advantage (Part C) program, as well as coverage
determination appeals from the Medicare Prescription Drug (Part D)
program and appeals of Income Related Monthly Adjustment Amount (IRMAA)
premium surcharges assessed by SSA. With this mix of work at the
expected
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levels, OMHA was able to meet the 90-day adjudication time frame.
However, in recent years, OMHA has experienced a significant and
sustained increase in appeals workload that has compromised its ability
to meet the 90-day adjudication time frame. In addition to the
expanding Medicare beneficiary population and utilization of services
across that population, the increase in appeals workload has resulted
from a number of changes in the Medicare claim review and appeals
processes in recent years, including:
Medicaid State Agency (MSA) appeals of Medicare coverage
denials for beneficiaries dually enrolled in both Medicare and
Medicaid. These appeals were previously addressed through a
demonstration project that employed an alternative dispute resolution
process to determine whether the Medicare or Medicaid program would pay
for care furnished to the dually enrolled beneficiaries. The
demonstration project ended in 2010, and the MSA appeals entered the
standard administrative appeals process, increasing appeals workloads
throughout the Medicare claim appeal process, including at OMHA.
The fee-for-service Recovery Audit (RA) program (also
known as the Recovery Audit Contractor program), which was made
permanent by section 302 of the Tax Relief and Health Care Act of 2006
(Pub. L. 109-432). Appeals from the RA program began to enter the
administrative appeals process at the CMS contractor levels in fiscal
year 2011. In fiscal year 2012, OMHA began receiving hearing requests
related to the RA program that exceeded projections.
CMS has implemented a number of changes to enhance its
monitoring of payment accuracy in the Medicare Part A and Part B
programs, which have increased denial rates and likely contributed to
increased appeals. For example, based on recommendations from the HHS
Office of Inspector General (OIG), in 2009, CMS tightened its
methodologies related to how it calculates the Medicare payment error
rate, with a view towards improving provider claims documentation and
compliance with Medicare's billing, coverage, and medical necessity
requirements. In addition, Medicare Administrative Contractors (MACs)
initiated a series of focused medical review initiatives, which
increased the overall number of denied claims. CMS also initiated
efforts to eliminate payment error and fraud based on Executive Order
13520 and the Improper Payments Elimination and Recovery Act of 2010
(Pub. L. 111-204), resulting in additional denied claims and the
identification of overpayments.
With the increase in overall claim denials, the administrative
appeals process has experienced an overall increase in appeal requests.
At OMHA, the more than anticipated workload increase in appealed claims
resulted in a backlog of appeals (that is, appeals that cannot be heard
and decided within the adjudication time frame) starting in fiscal year
2012, with a 42% increase from fiscal year 2011 in the number of claims
appealed to OMHA. In fiscal year 2013, the number of claims appealed to
OMHA more than doubled from fiscal year 2012, with a 123% increase,
further contributing to the backlog of cases and resulting in a
substantial increase in the adjudication time frame. The increase in
appealed claims from the RA program was particularly high in fiscal
year 2013, with a 506% increase in appealed RA program claims compared
to fiscal year 2012 appealed claims from the RA program, versus a 77%
increase in appealed claims not related to the RA program during that
same period of time.
In 2013, CMS issued an Administrator Ruling (published on March 18,
2013, 78 FR 16614) and finalized new rules (published on August 19,
2013, 78 FR 50495) designed to clarify criteria for new (fiscal year
2014) Medicare Part A inpatient hospital admissions, which comprised
the disputed issues in a majority of RA program appeals, and to clarify
policies at issue in appeals of inpatient claim denials under the
existing rules. In addition, CMS expanded the scope of alternative Part
B services that could be billed if a Part A inpatient admission was
denied and, as part of the ruling, for a limited time allowed hospitals
to submit Part B claims for those services beyond the one-year claim
filing deadline. Separately, CMS also suspended most RA program audits
of Part A inpatient hospital admissions under the new inpatient
admission criteria (commonly referred to as the two-midnight rule),
which was effective for inpatient claims with admission dates on and
after October 1, 2013, in order to offer providers time to become
educated on the two-midnight rule. The suspension of audits for new
admissions was extended for claims with dates of admission through
March 31, 2015, pursuant to section 111 of the Protecting Access to
Medicare Act of 2014 (Pub. L. 113-93). CMS is also making improvements
to the RA program that are designed to increase the accuracy of RA
determinations and to reduce the burden on providers as well as the
number of payment denials that providers and suppliers appeal.
OMHA also took measures to mitigate the effects of the workload
increase at the Administrative Law Judge level. One of the immediate
measures taken was to ensure that processing of the relatively small
numbers of beneficiary-initiated appeals was prioritized. For the
remaining cases, OMHA has deferred assignments of new requests for
hearing until an adjudicator becomes available, which will allow
appeals to be assigned more efficiently on a first in/first out basis
as an Administrative Law Judge's case docket is able to accommodate
additional workload.
On February 12, 2014, OMHA hosted a Medicare Appellant Forum (see
OMHA's Notice of Meeting, published on January 3, 2014, 79 FR 393). The
Medicare Appellant Forum was conducted to provide the appellant
community with an update on the status of OMHA operations; relay
information on a number of OMHA initiatives designed to mitigate the
backlog in processing Medicare appeals at the Administrative Law Judge
level of the administrative appeals process; and provide information on
measures that appellants could take to make the administrative appeals
process work more efficiently at the Administrative Law Judge level. In
addition, CMS and the DAB participated in the forum and shared
information on operations at their respective appeals levels. A second
OMHA Medicare Appellant Forum was held on October 29, 2014 (see OMHA's
Notice of Meeting, published on October 23, 2014, 79 FR 63398). As
conveyed at the forums, HHS is committed to addressing the challenges
facing the Medicare claim and entitlement appeals process, and has
implemented initiatives and continues to explore additional measures to
address the workload increase and reduce the backlog of appeals.
Since the February Medicare Appellant Forum, OMHA has implemented
two pilot programs to provide appellants with meaningful options to
address claims at the Administrative Law Judge level of appeal, in
addition to the existing right to escalate a request for appeal when
the adjudication time frame is not met. OMHA is providing appellants
with an option to use statistical sampling during the Administrative
Law Judge hearing process, which will enable appellants to obtain a
decision on large numbers of appealed claims based on a sampling of
those claims. OMHA is also providing appellants with an option for
settlement conference facilitation, which will provide appellants with
an independent
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OMHA facilitator to discuss potential settlement of claims with
authorized settlement officials. Additional information on these two
pilots can be found on OMHA's Web site, http://www.hhs.gov/omha.
In addition to these initiatives, OMHA continues to pursue new case
processing efficiencies and an electronic case adjudication processing
environment (ECAPE) to bring further efficiencies to the appeals
process.
II. Request for Information
OMHA is seeking input from the public on the current initiatives
being undertaken at the Administrative Law Judge level, as well as
suggestions for additional initiatives which could be undertaken at
OMHA to address the Medicare claim and entitlement appeals workload and
backlog at the Administrative Law Judge level. Input is sought on the
following topics and questions:
Are there suggestions related to the current initiatives
for addressing the increased workload and/or backlog of appeals at the
Administrative Law Judge level that comply with current statutory
authorities and requirements?
Are there other suggestions for addressing the increased
workload and/or backlog of appeals at the Administrative Law Judge
level that comply with current statutory authorities and requirements?
Are there any current regulations that apply to the
Administrative Law Judge level of the Medicare claim and entitlement
appeals process that could be revised to streamline the adjudication
process while ensuring that parties to the appeals, as defined at 42
CFR 405.902 and 405.906, are afforded opportunities to participate in
the process and are kept apprised of appeals related to claims
submitted by them or on their behalf?
(Catalog of Federal Domestic Assistance Program No. 93.770,
Medicare--Prescription Drug Coverage; Program No. 93.773, Medicare--
Hospital Insurance; and Program No. 93.774, Medicare--Supplementary
Medical Insurance Program)
Dated: October 30, 2014.
Nancy J. Griswold,
Chief Administrative Law Judge, Office of Medicare Hearings and
Appeals.
[FR Doc. 2014-26214 Filed 11-4-14; 8:45 am]
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